By Dr. Ken Broda-Bahm:
Our blog, formerly "Litigation Postscript," is now "Persuasive Litigator." This new name highlights our focus on the practical application of psychological and communication research and theory to the persuasive burden faced in all litigation phases and contexts. Thanks for reading.
As we turn the page on a new year, it is a good time to look back on the trials of 2011. The year had its share of high profile cases from the 'second times a charm' prosecution of Rod Blagojevich, to the conviction of Dr. Conrad Murray, and even the grand jury phases of the Jerry Sandusky trial. In these cases and others, the year held many great trial moments, but as far as the trial moment with biggest impact on litigation generally, the distinction goes to the Casey Anthony case, not for its deeply unpopular verdict, but for methods applied in the defense, and what these methods can mean for your trial.
Consultants working for the Casey Anthony defense applied a strategy called "social listening" to this uniquely public trial, analyzing more than 40,000 posts, tweets, and other social media comments on the case in order to, in effect, conduct a daily national focus group on the trial as it progressed. While few, if any, cases will ever reach that fever-pitch of commentary, the technique of systematically analyzing content from public sources can apply to trials across the spectrum, providing another sounding board and tool for assessing your case. In the Anthony trial, the social media world responded daily, and with specificity, to the evidence and witnesses of the trial itself. That will only happen with high profile trials, but in other cases, the blogs, tweets, and comments ricocheting around the internet will still bear on issues that matter to your case. This post takes a look at what social listening means, and how it can be used in cases large and small.
What Does Social Listening Mean to Litigators?
Social media expertise, and social listening in particular, is evolving as a specialization with direct relevance to litigation. While the phrase "social listening" most often refers to a company's practice of monitoring what is being said about its products or services on social media sites or review sites like Amazon, similar needs and techniques apply to litigation as well. I asked a specialist: Christine Martin, Vice President for Strategic Communications and Social Media with FTI Consulting. She notes, "Social-monitoring platforms can track thousands of blogs, forums, and social-networking channels as well as traditional media, all in close-to-real-time." But in the same way that asking your friends what they think of your case isn't a substitute for a systematic mock trial, relying on your household search engine isn't a substitute for professional social listening.
"When you are trying to listen to a large volume of internet communications for a legal case," Martin says, "nothing can take the place of a qualified analyst with legal, social science, and search-engine expertise who is fluent in the newest social media monitoring technology available." Some of this new monitoring technology includes not only free sites, but also specialized programs such as Radian6, Sysomos, and Meltwater.
We don't know what specific approaches were applied by the Anthony defense team, and we do know that social listening was not invented for the Anthony trial. But based on the scale of review, the depth of public commentary, and the public awareness, the strategy of social listening in the Anthony case was novel. According to Florida A&M law professor Shiv Persaud, reported in the Palm Beach Post, "This is the first time I have heard of this kind of consulting for a trial and it's incredible.... We could benefit from a new type of tool we didn't have before." The consultant most responsible, Amy Singer, agrees. "I've spent 32 years listening to people's reactions to trial stimulus, but it's never been anything like this," she said. "This whole case was driven by social media. We really tapped into people's minds."
But is it Valid?
That invites the question of whether we really are tapping into people's minds. Is social media commentary a reliable gauge on public opinion? It obviously isn't an infallible mirror of opinion within either your specific venue or your actual jury, but based on current evidence, it is more reliable than you might think. A study coming out of Carnegie Mellon University (O'Connor et al., 2010) compared polling with twitter message content on issues of consumer confidence and political opinion and found striking levels of correspondence, in several cases with correlations as high as 80%. The positive or negative content of the tweets, as measured with word-counting software, tended to match the opinions measured in polls. While the research focuses on just one social media source, Twitter, it isn't too great a stretch to believe that similar levels of correspondence apply to other on-line sources as well. The researchers conclude that in some contexts, mining publicly available data could be "a faster and less expensive alternative to traditional polls."
How Should Litigators Put Social Listening Into Practice?
1. Get Beyond Google. Yes, we all know that we can get pages and pages of hits off of most common search terms in Google, and many of us also know that it is possible to do advanced searches allowing you to get a little more Boolean (and, or, not), and to search by date. But even in the hands of strategic searchers, Google and comparable search engines are still just practical "finders" that aren't adapted to social listening. As Christine Martin writes, "Google is a wonderful tool, but it is simply not suited to the kind of large-scale monitoring tasks that are needed when searching public sentiment about an on-going jury trial or legal case. Using Google alone to do the kind of social media analysis and opinion mining needed for a large case would be overly time consuming and very likely miss key information." For example, just Googling "Casey Anthony" returns more than sixty million hits.
2. Don't Assume that Social Media Exactly Reflects Your Target Audience. Even in light of studies, such as the one cited above, showing a high level of correspondence between public opinion and social media commentary, it is important to remember that no on-line analysis should be treated as a facsimile of opinions within your venue, much less your actual jury. There is probably no better example of that than the Casey Anthony case itself. Based on the shock and derision accompanying the verdict, it is clear that the jury was having a very different experience of the case than that experienced by much of the rest of the world. The same is likely to be true in any case. Without aiming to predict your actual jury's reaction, the public commentary can provide a spectrum of possible responses, and serve as a sounding board for the case.
3. Pay More Attention to Leaders and Influencers. One interesting tidbit about the O'Connor et al. study is that, in addition to finding that on-line content had a high correlation with public opinion measured in the polls, the researchers also found that social media comments could actually predict future movements in the polls. Now, why would that be the case? The likely answer is because the social media analysis, unlike the polls, are looking at the opinion leaders and "influencers." Instead of assuming that all opinions are equal, as a poll inevitably does, a social listening analysis is focusing on the "squeakiest wheels" that have an influence on the views of a much larger number. That doesn't mean that every on-line comment, however, is influential. Not all comments have equal weight. According to Christine Martin, "A good analyst knows how to use the analytics provided to determine influence and authority of individual postings, thereby identifying the strength and power of opinion to disseminate, persuade and reflect public sentiment."
As technology and our use of it has evolved, it was inevitable that at some point a trial would emerge as the "social media trial." The fact that the Casey Anthony defense, with its emotional content and deeply unpopular verdict, was that case should not reflect on the technique itself. There has never been anything intrusive or improper about using public commentary to get a handle on the issues that matter to your case. "We now have better listening technology and unprecedented access to the biggest focus group and/or shadow juries on-line," Christine Martin writes, yet "taking the lazy path of depending on merely Google search and 'news alerts' is no longer an viable option in the data heavy environment we are now living in."
With help from a specialist, every litigator should consider social listening as one of the tools of case assessment and strategy development, particularly when the stakes are high and the public attitudes are strong, in 2012 and beyond.
And speaking of 2012, I personally can't wait for the John Edwards trial.
Other Posts on Social Media:
- Parties, Witnesses and Jurors: Don’t Be Afraid to Meet Them Face to Face(book)
- Beware of the Jury's "Filter Bubble"
- Conduct a Social Media Analysis on Your Potential Jurors (But Beware of False Expectations of Privacy)
O'Connor, Brendan, Balasubramanyan, Ramnath, Routledge, Bryan R., & Smith, Noah A. (2010). From Tweets to Polls: Linking Text Sentiment to Public Opinion Time Series Tepper School of Business (Paper 559)
Image Credit (edited): ElectronicFrontierFoundation, Flickr Creative Commons